Cheogape Gundidza v Rita Kamutatu and Deputy Sheriff, Kwekwe

### Preamble
1
HB 260/20
HC 2586/07
---------


CHEOGAPE GUNDIDZA

Versus

RITA KAMUTATU

And

DEPUTY SHERIFF, KWEKWE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 13& 19 NOVEMBER 2020

Court application

B. Ndove, for the applicant

C. Mugabe, for the 1st respondent

DUBE-BANDA J: In this court application, applicant seeks the eviction of 1st respondent and all those claiming the right of occupation through her from House No. 23/12 Mbizo, Kwekwe (property), and costs of suit on a legal practitioner and client scale. The application is opposed by the 1st respondent.

The background to this matter is that, on the 16 November 2006, applicant entered into an agreement of sale with one Jaison Kamutatu (now late). The subject matter of the agreement was House No. 23/12 Mbizo, Kwekwe. The property was transferred into the name of the applicant on the 5th January 2007. Jaison Kamutatu the seller subsequently died and Rita Kamutatu (1st respondent), his wife remains in occupation of the property.

In the 8th February 2007, 1st respondent obtained an order from the Magistrates Court, at Kwekwe, interdicting the now late husband from selling and transferring House 23/12 Mbizo, Kwekwe, to a third party.  This is the property that is subject to this dispute. Unknown to the Magistrates Court and to the 1st respondent, the now late had already on the 16 November 2006 sealed an agreement of sale with applicant in respect same property, i.e. house 23/12 Mbizo, Kwekwe. Applicant paid the full purchase price and the property was transferred into his name on the 5th January 2007, under Deed of Transfer number 32/2007.  On the 8th February 2007, when the Magistrates Court, Kwekwe granted the interdict, the property had already been sold and transferred to applicant.

At the commencement of hearing, Mr Ndove, counsel for the applicant made an oral application to replace a copy of a Deed of Transfer No. 2068/03 in the name of Jaison Kamutatu  attached to the application, with a Deed of Transfer No. 32/2007 in the name of Cheogape Gundidza (applicant). After hearing brief argument on the issue, I allowed the application and made the following order:

That the application to replace the a copy of a Deed of Transfer No. 2068/03 in the name of Jaison Kamutatu  attached to the application, with a Deed of Transfer No. 32/2007 in the name of Cheogape Gundiza, is granted. The reasons thereof shall be contained in the judgment.

Mr Ndove, counsel for the applicant submitted that he discovered a day before hearing that a wrong deed of transfer was attached to the application. He contended that this was a mistake on the part of applicant’s legal practitioners. Ms Mugabe, counsel for the 1st respondent opposed the application. It was contended that an application stands or falls on the papers filed before court, and the wrong deed of transfer was the document used in support of the application, and cannot be replaced at the proverbial eleventh hour.

I agree with Mr Ndove that the attachment of a wrong deed of transfer was a mistake. I say so because in paragraph 5 of the founding affidavit, applicant averred as follows:

The 1st respondent is still in occupation of the house claiming through her late husband, despite the fact that the house is now registered in my names as will more fully appear on the Deed of transfer attached hereto and marked Annexure B.

In her opposing affidavit, 1st respondent did not challenge the averment that the property is now registered in the name of the applicant and that the deed of transfer attached represented that fact. It appears that 1st respondent also made the same mistake that the deed of transfer attached was one in respect of the applicant. It was a mistake common to both parties. Again, neither did 1st respondent allege that she will suffer any prejudice by the replacement of the correct deed of transfer, nor could I perceive any prejudice to the 1st respondent. It is important, though that counsel pay particular attention to detail, and attach proof read the papers before filing. Otherwise, if these papers were proof read, it could have been apparent that a wrong deed of transfer has been attached to the papers. These are the reasons why I made the order quoted above.

The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent.  It derives from the principle that an owner cannot be deprived of his property without his consent.  This being an application predicated on rei vindicatio, once the applicant has shown that it is the owner of the thing, which still exists, is clearly identifiable and was in the respondent’s possession, the onusis on the respondent to show the existence of a right to possession. See Indium Inv. (Pvt) Ltd v Kingshaven (Pvt) Ltd & OthersSC 40/2015; Chetty v Naidoo 1975 (3) SA 13.

It is inherent in the nature of ownership that possession of the propertyshould normally be with the owner, and it follows that no other person   may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g., a right of retention or a contractual right).The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the property - the onus being on the defendant to allege and establish any right to continue to hold against the owner.

See Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H); Jeena v Minister of Lands, 1955 (2) SA 380 (AD) at pp 382E, 383).

The nub of the actio rei vindicatio is that an owner is entitled to reclaim possession of his property from whosoever is in possession thereof. The onus is on the 1st respondent to prove a legally recognized right to remain in occupation of the property. The 1strespondent claimed a right to occupation of the property on the basis that she has an order against her late husband interdicting him from selling and transferring the property to a third party.

According to applicant, 1st respondent was not core owner of house 23/12 Mbizo, Kwekwe. She has not disputed that the house is now registered in the name of the applicant. It is argued that 1st respondent is opposing this application so that she can buy more time in her unlawful occupation of the property. It is contended that the opposition is ill-advised.

Ms Mugabe, counsel for the 1st respondent summited that 1st respondent has a vested right for continued possession of the property. The court order granted by the Magistrates Court is still extant. The now late husband of the 1st respondent was interdicted from selling and transferring the property to a third party. That court order remains binding and ought to be complied with. It was submitted that 1st respondent has successfully showed her right to possession, such right warrants a dismissal of the application for eviction.

The house in question was registered in name of Jaison Kamutatu - the now deceased husband of the 1st respondent. Such registration in deeds registry is a matter of substance and not mere form – see Takapfuma v Takapfuma 1994 (2) ZLR 103 (5) at 105H – 106A. The registration of title in one’s name constitutes the registration of a real right in the name of that person. A real right is a right in a thing which entitles the holder to vindicate his right, i.e. to enforce his right in the thing for his own benefit as against the world; that is against all persons whatsoever. Another definition of a real right is that it is a right in a thing which confers on the holder of the right an exclusive benefit in the thing which benefit is indefeasible by any other person. Agro Chem Dealers (Pvt) Ltd v Gomo and Others HH 71/09.

It is law in this jurisdiction that as a general rule the rights of husband and wife are personal and do not as a matter of law affect third parties. As a matter of broad principle, the rights of husband and wife must be regarded as purely personal inter se and that these rights as a matter of law do not affect third parties. A spouse who is the registered real title holder of an immovable property can alienate or sale and transfer the property to a third party without the consent of the other spouse. This general rule is subject to certain exceptions which do not apply in this case.  See Tewe v Hanoki SC 55/03.In casu, 1st respondent has not filed a counter claim challenging the transfer of title to the applicant. See Muzanenhamo & Anor v Katanga &Ors 1991 (1) ZLR 182 (S).

Mr Ndove submitted that the interdict was granted when the proverbial horse had already bolted, in that when it was granted the property had already been sold and transferred to the applicant. I agree. The interdict granted by the Magistrates Court is a brutum fulmen and therefore not executable.

Ms Mugabe submitted that 1st respondent has successfully showed her right to possession, such right warrants a dismissal of the application for eviction. I disagree. She does not say possession pending what, and until when? 1st respondent cannot occupy applicant’s property indefinitely, and without a lawful justification. On the other hand, applicant has alleged and proved that it is the owner of the property. Applicant has proved that 1st respondent was in occupation of the property at the commencement of this applicationwithout his consent.1st respondent has not proved any right of retention.

Disposition

In the result, I grant the following order:

The 1st respondent and all those claiming the right of occupation through her are and hereby evicted from House No. 23/12 Mbizo, Kwekwe. 1st respondent to pay the costs of suit on a party and party scale.

Ndove and Associates, applicant’s legal practitioners

C.T. Mugabe and Associates, 1st respondent’s legal practitioners